Federal appeals court hears arguments on tobacco advertising

The US Court of Appeals for the Sixth Circuit [official website] heard oral arguments on Wednesday in Discount Tobacco City & Lottery v. USA [Justia backgrounder] on cross-appeals from a tobacco advertising decision [JURIST report] in January 2010. The January ruling upheld [opinion, PDF] the majority of restrictions on cigarette advertising imposed by the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text], a law designed to limit the tobacco industry's ability to advertise to children, including a ban on distributing clothing and goods with logos or brand names, as well as sponsorship of cultural, athletic and social events. Several tobacco companies are appealing this ruling. Although this was considered a victory for anti-tobacco activists, the judgment did permit the continued use of color and graphics in tobacco advertisements and labels, striking down those portions of the law, and the Department of Justice (DOJ) [official side], joined by a variety of anti-smoking groups are appealing that part of the judgment. The DOJ argued [AP report] for the reinstatement of those provisions, explaining that the government has a right to regulate tobacco as they see fit, due to its lethal and addictive nature. The Public Health Law Center [advocacy website] filed an amicus brief [text, PDF] agreeing with the DOJ:

It was the tobacco companies who turned seemingly straightforward terms like "lights" into misleading Orwellian caricatures; it was they who so corrupted the market for MRTPs ["modified risk tobacco products"] that the only way to make it safe was to require FDA approval beforehand; it was they who through deception and manipulation created the need for the graphic warning labels. The FSPTCA is an appropriate response to a continuing catastrophe.

R.J. Reynolds Co. [corporate website], the manufacturer of several popular cigarette brands, argued that the limitations on free speech were so sweeping that it restricts adults unfairly. It is unknown when the three-judge panel for the Sixth Circuit will rule on the case.

In 2009, US President Barack Obama [official website] signed the FSPTCA into law [JURIST report] granting the FDA certain authority to regulate tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients. The bill gives the FDA authority to regulate tobacco products but does not permit the agency to regulate tobacco leaf that is not in the hands of tobacco product manufacturers or producers of tobacco leaf, including tobacco growers, tobacco warehouses and tobacco grower cooperatives. Cigarettes and other tobacco products have been subject to strict marketing regulations on both the federal and state levels. Earlier this month, a judge for the US District Court for the Northern District of California [official website] dismissed [JURIST report] a lawsuit over the constitutional right to sell cigarettes in pharmacies. The court upheld the ordinance citing health risks associated with smoking cigarettes and said, "through the sale of tobacco products, pharmacies convey tacit approval of the purchase and use of tobacco products, which sends a mixed message to consumers who generally patronize pharmacies for health care services." Earlier this year, two tobacco companies filed a lawsuit [JURIST report] in the US District Court for the District of Columbia [official website] against the Food and Drug Administration (FDA) [official website] to enjoin a recent opinion by the agency's advisory committee due to conflicts of interest. Last year, the FDA announced a final rule [text] restricting tobacco sales and promotions [JURIST report] directed at youth. The Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents are a set of broad regulations "designed to significantly curb access to and the appeal of cigarettes and smokeless tobacco products to children and adolescents in the United States."

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